One of the Institute for Justice’s great strengths is our unwavering but creative focus on our four pillars of litigation: private property, economic liberty, free speech and school choice. Keeping our efforts focused maximizes the effectiveness of our advocacy by making sure we act only in areas where we have the expertise to make a real difference. We accomplish this, however, not only by excluding things that are irrelevant to our pillars, but by actively forging new connections between the issues of the day and our central litigation goals. There is no better example of this than our recent friend-of-the-court brief before the U.S. Supreme Court in District of Columbia v. Heller, this term’s landmark Second Amendment case.
“The case presented an excellent opportunity to remind the Court of how far astray its jurisprudence has gone in protecting other individual liberties.”
Although the case—a challenge to the District of Columbia’s gun ban that centers on whether the Second Amendment protects an individual right or protects merely a “collective” right of state militias—has indirect connections to IJ (the lawyers challenging the ban are IJ Board Member Bob Levy, Senior Attorney Clark Neily and former IJ clerk Alan Gura), most people would see no connection between IJ’s pillars and the right to keep and bear arms. To us, though, the case presented an excellent opportunity to argue in favor of revitalizing the Privileges or Immunities Clause of the 14th Amendment of the Constitution.
The Privileges or Immunities Clause is important because it was intended to protect economic liberty. By using the gun brief to raise the profile of the Privileges or Immunities Clause, we advance our economic liberty mission. The clause suffered a near-total demise shortly after its ratification when the Supreme Court read the clause out of the Constitution.
Just as the Privileges or Immunities Clause was meant to protect economic liberty, it was also meant to protect all of our other rights, including the right to bear arms. In our brief we detail the voluminous historical evidence that the Reconstruction Congress was deeply concerned by widespread reports of the forced disarming of newly freed slaves, which they saw as a violation of the natural right to keep and bear arms; they clearly viewed these violations as among the evils the 14th Amendment would remedy. This view of the individual right to keep and bear arms, incorporated in the 14th Amendment, informs the proper interpretation of the Second Amendment. Just as importantly, this voluminous evidence underscores the powerful protection of individual liberties, including economic liberties, that was meant to be included in the Privileges or Immunities Clause—making clearer than ever just how wrong the Slaughter-House Cases were.
Out of a case that did not have an obvious connection to IJ’s pillars, then, we have created an opportunity to advance one of our most important goals. Besides providing the Court with important historical background in one of the term’s most important cases (our brief provides the only rebuttal to three different briefs filed on behalf of the government) we have found a new opportunity to remind the Court that the Privileges or Immunities Clause should be restored to its intended rights-protecting glory.
The fight for freedom is an uphill battle, but we make the climb easier by finding innovative opportunities to advance our goals through every practical avenue open to us.
Robert McNamara is an IJ staff attorney.